RIVERSIDE, Calif.— Thanks to a lawsuit by the Center for Biological Diversity and California Unions for Reliable Energy (CURE), a California appellate court has struck down the Mojave Desert Air Quality Management District’s regulation that allowed air pollution from power plants to be offset by road paving. The decision, issued on Friday by a three-judge panel of the Fourth Appellate District, is a substantial victory for clean air in the high desert.

In 2007, the Mojave Desert Air Quality Management District adopted Rule 1406, which would have allowed coal-burning power plants and other sources of particulate air pollution to offset their emissions by paving stretches of unpaved roads – the theory being that paving would reduce dust. The district found that the rule was exempt from the environmental review requirements of the California Environmental Quality Act.

“The district was saying, in effect, ‘We’ll overlook your power plant’s pollution if you just build a few more roads,’” said John Buse, the Center’s legal director. “But paving a dirt road simply doesn’t reduce the same type of fine particulate pollution as that produced by coal-burning power plants. Not only was this policy an end-run around air pollution protections, it completely ignored the effects of road paving on rare wildlife such as the desert tortoise.”

The Center for Biological Diversity and CURE objected to the California Environmental Quality Act exemption and submitted evidence to the district showing that road paving does not effectively offset power plant emissions – but that it can result in other harmful environmental consequences. When the district nonetheless adopted Rule 1406, the Center and CURE filed a lawsuit in Riverside Superior Court challenging the rule.

The appellate court, reversing an earlier ruling by the Riverside Superior Court, then invalidated Rule 1406, finding that the district had not supported its claim that the rule is exempt from the California Environmental Quality Act. As a result, if the district attempts to adopt a similar road-paving offset for power plant pollution in the future, it must comply with California Environmental Quality Act.

“We were shocked that Rule 1406 ever made it out of the starting gates, let alone that this case had to go this far,” said Buse. “But we’re glad to be vindicated by the appeals court and we’re looking forward to the district complying with the law next time around.”

The Center and CURE were represented by attorney Gloria Smith.

The Center for Biological Diversity is a nonprofit conservation organization with more than 240,000 members and online activists dedicated to the protection of endangered species and wild lands.